Hopkins v. Spring Independent School Dist.

• Decision Date: 25 February 1987
• Docket Number: No. C-5209,C-5209
• Parties: 42 Ed. Law Rep. 448 Celeste Eugenia HOPKINS, a/n/f of Celeste Adeline Hopkins, Petitioner, v. SPRING INDEPENDENT SCHOOL DISTRICT et al., Respondents.
• Court: Texas Supreme Court

Page 617

736 S.W.2d 617

42 Ed. Law Rep. 448

Celeste Eugenia HOPKINS, a/n/f of Celeste Adeline Hopkins, Petitioner, v. SPRING INDEPENDENT SCHOOL DISTRICT et al., Respondents.

No. C-5209.

Supreme Court of Texas.

Feb. 25, 1987.

Rehearing Denied Oct. 7, 1987.

Victor R. Rodriguez, Hocker, Rodriguez & Morrow, George W. Wilhite, Wilhite, Gilbreath, Squier, Hamm & Caridi, Inc., Houston, for petitioner.

Daryl G. Dursum, Coats, Yale, Holm & Lee, James A. McDaniel, Houston, for respondents.

CAMPBELL, Justice.

This is an appeal from a summary judgment rendered for Spring Independent School District and several of its employees. The court of appeals affirmed the trial court's judgment. 706 S.W.2d 325. We affirm the judgment of the court of appeals.

Celeste Adeline Hopkins, a student at an elementary school in the Spring Independent School District, suffers from cerebral palsy. Her mother, Celeste Eugenia Hopkins, alleges that while the students were left unsupervised Celeste Adeline was pushed into a stack of chairs and sustained a head injury. She had mild convulsions, developed cold sweats and became dazed and incoherent. The teacher did not call for help or send her to the school nurse. Later, an occupational therapist noticed her condition and took her to the nurse, who told Celeste Adeline to stay at school. The nurse did not contact her mother, an employee of the school district, and did not contact her doctors, although the school knew the names of the doctors.

At the end of the school day, Celeste Adeline rode on the school bus to the day care center. She suffered severe convulsions while on the bus. The bus driver contacted a supervisor, requesting a school nurse be provided at the next stop, but none was provided. The driver was told to take her to the day care center, where she finally received medical treatment.

Two years later Celeste Adeline's mother sued Spring I.S.D., the bus supervisor, the school principal, the school nurse and the teacher. She claimed the school personnel's negligence and gross negligence in failing to provide adequate care dramatically decreased Celeste Adeline's life expectancy. Summary judgment was rendered for the school district and the employees based on the immunity granted the school district under the Tort Claims Act and the employees under the Education Code.

We are asked to abrogate the immunity enjoyed by school district employees under section 21.912 of the Texas Education Code. This would require us to overrule the recent Supreme Court case of Barr v. Bernhard, 562 S.W.2d 844 (Tex.1978).

Mrs. Hopkins contends that school personnel should be liable for their negligent acts which result in serious bodily injury to students. The Texas Education Code, section 21.912, provides tort immunity to professional school employees except:

No professional employee of any school district within this state shall be personally liable for any act incident to or within the scope of the duties of his position of employment, and which act involves the exercise of judgment or discretion on the part of the employee, except in circumstances where professional employees use excessive force in the discipline of students or negligence resulting in bodily injury to students.

Tex.Educ.Code Ann. § 21.912 (Vernon Supp.1986). This statute was construed in Barr v. Bernhard. This court held a professional school employee is not personally liable for acts done within the scope of employment and which involve the exercise of judgment or discretion, except when disciplining a student the employee uses excessive force or negligence which results in bodily injury to the student. Barr, 562 S.W.2d at 849.

The Barr court held the statute is ambiguous because "it is inaccurate to say that a person 'uses negligence'; negligence occurs as a result of an act or omission by an individual." Therefore, the court determined the legislative intent of the statute. Id. at 848. The court concluded that when subsection (b) is read in conjunction with subsection (c), an interpretation that the last clause of subsection (b) subjects employees to liability for any negligent act which results in bodily injury is untenable. Subsection (c) states, "This section is not applicable to the operation, use, or maintenance of any motor vehicle." The court reasoned that if subsection (b) were read to exclude from immunity all negligent acts of school employees, not merely those incident to discipline, there would be no need for subsection (c) to explicitly negate immunity in the operation, use, or maintenance of a motor vehicle.

Barr was decided eight years ago, and the legislature has had ample time to change the statute if that construction did not comport with legislative intent. It has not done so. Indeed, the legislature has broadened the immunity provided by section 21.912(b) by enacting section 13.906 of the Texas Education Code in 1981 and section 13.503 in 1984.

Section 13.906(a) applies to student teachers:

A person assigned to perform student teaching in a student teacher center is entitled to the same protection of law accorded to the supervising teacher and the principal of the school in which the student teacher serves or acts in the course of employment. This protection includes the limitation of liability accorded all professional employees as specified in Section 21.912 of this Code. While serving as a student teacher, a person shall comply with the rules of the school and of the board of trustees of the district serving as the student teacher center.

Tex. Educ.Code Ann. §§ 13.503, 13.906(a) (Vernon Supp.1986). Subsection (c) of section 13.503 states: "A non-certified teacher is immune from personal liability for acts or omissions in the scope of employment to the same extent that a certified teacher is immune...." The Barr decision had been law for three years when the earliest of these statutes was passed. The legislature had time to consider Barr' § effect and chose to add to, not abrogate, the immunity granted by section 21.912. This court stated in Barr, "We will adhere to our decisions in the past that the waiver of governmental immunity is a matter to be addressed by the legislature." Lowe v. Texas Tech University, 540 S.W.2d 297 (Tex.1976).

Hopkins also contends the school employees could be liable under section 21.912 because their actions constituted "negligent discipline." She claims the child was disciplined by submitting to the authority and control of her teacher, the school nurse and other employees. We do not accept such a broad interpretation of the term "discipline."

In construing a statute, if the legislature does not define a term, its ordinary meaning will be applied. Satterfield v. Satterfield, 448 S.W.2d 456 (Tex.1969). "Discipline" in the school context ordinarily describes some form of punishment. The opinion in Diggs v. Bales describes "negligent discipline" as "punishment [which] involves no force, but rather requires some action on the part of the student as a result of which the student suffers bodily injury," as in ordering a student to run laps. 667 S.W.2d 916, 918 (Tex.App.--Dallas 1974, writ ref'd n.r.e.) We hold "negligent discipline" is not involved.

Hopkins also asserts the court of appeals erred in holding the school district and the bus supervisor immune from liability under the Texas Tort Claims Act. That Act grants immunity to school districts and their employees from liability for damages caused by negligence except in circumstances relating to the use, maintenance or operation of motor vehicles. Tex.Civ.Prac. & Rem. Code Ann. § 101.051 (Vernon 1986) (formerly article 6252-19 § 19A).

Hopkins argues the school district and the bus supervisor cannot claim this immunity because 1) the child's injuries were aggravated when she had seizures on the bus and 2) the defendants were negligent in failing to provide adequate medical care. Therefore, she claims, the injuries arose from the "use or operation of a motor vehicle." Several Texas courts have held that when injuries are not the proximate result of the use or operation of the school bus, but the bus provides the setting for the injury, the actions do not fall within the section 101.051 exception to immunity. See Jackson v. City of Corpus Christi, 484 S.W.2d 806 (Tex.Civ.App.--Corpus Christi 1972, writ ref'd n.r.e.); Brantley v. City of Dallas, 545 S.W.2d 284 (Tex.Civ.App.--Amarillo 1976, writ ref'd n.r.e.); Estate of Garza v. McAllen Independent School District, 613 S.W.2d 526 (Tex.Civ.App.--Beaumont 1981, writ ref'd n.r.e.); Pierson et al. v. Houston Independent School District et al., 698 S.W.2d 377 (Tex.App.--Houston [14th Dist.] 1985, writ ref'd n.r.e.). Applying the common and ordinary meaning of the words "operation" and "use", Celeste Adeline's injury could not have arisen from the use of a motor vehicle as contemplated by the statute.

We remain committed to our original interpretation of section 21.912 of the Education Code. The judgment of the court of appeals is affirmed.

KILGARLIN, J., dissenting, joined by RAY and MAUZY, JJ.

KILGARLIN, Justice, dissenting.

I respectfully dissent. Even if the court were correct in its adherence to Barr v. Bernhard, 562 S.W.2d 844 (Tex.1978), this cause would have to be reversed and remanded as to the defendant Charles Bammel, Spring's Director of Transportation.

By its clear language, Tex.Educ.Code Ann. § 21.912(b) is applicable to professional school district employees. Bammel's summary judgment proof does not place him in this category. While his affidavit states his job involves the exercise of judgment or discretion, it fails to state his employment requires certification, as mandated by section 21.912(d).

But, I would go further. I would overrule Barr v. Bernhard. The court's holding in that case was a product of faulty reasoning and conflicts with a majority of other jurisdictions which have followed the prevailing authority that the tort immunity of...